Dastan-E-Judiciary Versus Consent: Through Farooqi Case, Court Creates A Separate Class Of Survivors바카라�Educated Women

It invents new defenses for the accused, tends to redefine rape law and turns the definition of consent on its head and all these, by a willful disregard of the existing law and a dishonest and confounded appraisal of facts.

 The trial court last year convicted Farooqui on charges of rape. The trial court had carefully examined the statement of witnesses, all material evidence placed before it, the conduct of the victim and her testimony to convict the accused. It found the statement of the prosecutrix to be of sterling quality as well. More importantly it understood the import of the newly added definition of 바카라�consent바카라� in S. 375 of the Indian Penal Code by locating 바카라�lack of consent바카라� in the taking away of one바카라�s control over her sexuality.

 The High Court disputes none of these findings. It holds that the prosecutrix is a sterling witness (para 96 of the judgment) but puzzlingly creates a separate class of survivors-- the 바카라�educated women바카라� (like the prosecutrix) for whom the standard of 바카라�positive denial바카라�, it deems, will be higher. 

Needless to affirm, this bizarre and avowedly sexist judicial invention has absolutely no basis in law. The definition of consent was added to the expanded definition of rape in the 2013 criminal law amendments to mean 바카라�unequivocal voluntary agreement바카라� when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The legislative intent behind putting a definition to consent was to thwart decades of patriarchal and prejudicial reading of 바카라�presence바카라� of consent in the judicial discourse where past sexual history, absence of physical injury and other phallocentric commonsense were considered.

The Verma Committee while expanding the definition of rape had noted that definition of rape should require the existence of 바카라�unequivocal and voluntary agreement바카라� as well as proof by the accused of steps taken to ascertain whether the complainant was consenting. This was in keeping with decades long struggle by women바카라�s groups to expand the definition of rape, include a definition of consent and to ensure that the victim could access the legal system without the threat of re-victimization. The High Court judgment in a twisted way proves why the legislation felt the need to encode a definition of consent in S. 375 and shows how in spite of that, the courtroom can be the graveyard for (progressive) law reforms where its embedded patriarchy stubbornly makes a mockery of the object and intent of the definition of consent.

The court also assumes that the accused, also a man of 바카라�letters바카라�, known to the survivor, did not understand that the survivor had said 바카라�no바카라�, because presumably the 바카라�no바카라� was 바카라�feeble바카라� and that the accused was 바카라�bipolar바카라� and unable to comprehend her response. The focus therefore magically shifts from what the woman said to what the man understood. This irony is even starker when one considers the immediate instance바카라�where the case of the accused in the trial court was that the act not having taken place바카라�it was an active denial on grounds advanced by the accused that there was no opportunity or time for oral sex and that there was no relationship between the accused and the complainant.

The accused in his statement before the trial Court denied any intimacy or physical contact; he denied both these past instances of consensual kisses (as was stated by the complainant); he even denied that any sexual act took place on the day of the rape. In his statement before the Trial Court he categorically denies that there was any intimacy between the victim and him at any point.

He told the Trial Court that after he apologized to her via email, he called her on the phone, 바카라�I told her that there had never been any intimacy between us and there never shall be....바카라� He also stated before the Trial Court, 바카라�It is an incorrect statement given by the prosecutrix as I never sexually assaulted her nor did oral sex with her.바카라� In other words, there was nothing to warrant allegations of 바카라�feeble바카라� no arising from 바카라�misunderstanding바카라� (in the mind of the accused no doubt, according to the High Court) based on past sexual behavior.

The new 바카라�plea바카라�, completely contradictory to the earlier plea, bordering on the 바카라�argument바카라� that, 바카라�if at all, such an occurrence had taken place, it was with the consent of the prosecutrix바카라� was allowed to be added by the Judge as an 바카라�alternative plea바카라�. Never mind, that the Supreme Court has also clearly laid down that irreconcilable and contradictory stands  in trials.  And yet, the court allows this and yet does not allow the complainant to lead evidence on this 바카라�alternative바카라� plea, and happily qualifies the negative consent of the complainant by garlanding it with an adjective (feeble), without giving the complainant a chance to rebut this. How is a supposedly material fact that consent was feeble tested here without a cross examination?

 One doesn바카라�t know where to start responding to this barrage of speculations advanced by the High Court to reformulate real consent, real resistance and real rape바카라�the holy trinity of inexcusable defense in rape cases, which progressive law reforms in the past 30 years had sought to eradicate. To begin with, the court creates a new defense for 바카라�intellectually/academically proficient바카라� parties, who are 바카라�persons of letters바카라� and not 바카라�conservative바카라� and unexposed to the 바카라�various ways and systems of the world바카라� where a 바카라�feeble바카라� no, the court says would not always mean a denial of consent (para 77).  Factually, was the 바카라�no바카라� by the complainant 바카라�feeble바카라�? The testimony of the prosecutrix in the trial court on page 76 in the trial court judgment, gives an idea how many times she said no, by words as well as gesture. What she had stated in her testimony in court, she had stated in her FIR and her statement recorded under S. 164 CrPC. Her subsequent conduct is reproduced in the emails in the Sessions Court as well as the High Court judgments. They together show that nowhere is her lack of consent 바카라�feeble바카라�.

 In fact, the statement of the victim in the Mahmood Farooqui case, which has been accepted by the High Court as being of 바카라�sterling바카라� quality, shows beyond doubt that her lack of consent was emphatic, resounding, clear, and expressly communicated:

 바카라�At that time, accused kissed me. I said no. I pushed him away. He tried kissing me again and he said 바카라�I want to suck you.바카라� (the witness started weeping)

I said no. He started putting his hand up my dress and pulling my underwear down from one side. I was trying to pull my underwear up from the other side. He held my arms and pinned my arms and body on the diwan. I said no. I struggled to push him away but he was stronger than I was. I did not understand how he could be that much strong. I was very scared. (The witness continued weeping and restless).

I thought two things. The first thing I thought 바카라�I had seen a clip from documentary of Nirbhaya case where rapist had said that if she (victim) did not fight, she would still be alive.바카라� I thought that I am going to get out of this and survive. Accused forced oral sex on me.  I faked an orgasm because I wanted it to end바카라�바카라�

 After communicating her lack of consent repeatedly through words, gestures and actions, when the accused still does not stop forcing himself on her, and in fact begins to use force and his physical strength to pin her down that she is forced to submit and resorts to ending the ordeal. It is impossible to imagine which part of this sterling testimony of the prosecutrix conjures an impression of 바카라�feeble바카라� no in the mind of the judge.

 Legally, does it matter, even if hypothetically one assumes that it was a 바카라�feeble바카라� no? It doesn바카라�t. The definition of consent was added to the expanded definition of rape in the 2013 amendments for a reason. Again, past intimacy of a consensual nature must not have any bearing on the trial.  The  prevents the accused from raising irrelevant facts such as past sexual history and victim blaming and shaming during the trial and yet one finds the text of the judgment allowing past history to intervene, to show at the very least that the accused did not understand the communication of negative consent from the complainant. There is no doubt that consent, lack of consent and expression of lack of consent is different in situations where there has been past sexual intimacy. But in a situation where the woman has stated that she expressed her lack of consent repeatedly (and the same is unchallenged during cross-examination) and where the accused has repeatedly denied that any sexual act took place, either in the past or on the day of the rape, can a court or public commentators claim that they know that the accused did not understand the 바카라�No바카라� because they as third person have decided that the 바카라�No바카라� was feeble, not resounding and not emphatic?

 Similarly, while 바카라�bipolar바카라� condition was not a defense (and nor is it a valid defense in law) advanced by the accused, and surfaces only by way of email communication between the complainant and the wife of the accused, the court invents it as a plausible defense speculating reasons for non-comprehension of negative consent by the accused, while hastening to add that it would not venture into a speculative field since no material has been advanced by the accused.

Will the court say for example, that a drunk man who forces himself on the victim in spite of her categorical lack of consent is not guilty because he was unable to comprehend anything because he was drunk?

 Contrary to what is being argued in think pieces, consensual intimacy in the past is bound to lead a woman to believe that the man will accept her first signs of resistance and her expressly communicated lack of consent. It will make a woman believe that she doesn바카라�t need to scream, shout, physically hit back to make the man stop raping her. In this case, contrary to certain distortions of the facts, there was no 바카라�relationship바카라� between the parties. In a perverse and deliberate misreading of facts, the sexual autonomy of the prosecutrix, who owned her sexuality to affirm that there were two consensual exchange of kisses in the past (and no relationship) to repeatedly suggest that even though she continuously communicated her lack of consent when the accused forced himself on her, it was unreasonable to expect the accused to stop raping her, because he did not understand her non-consent.

This is the tragedy of our courtrooms 바카라� that our courts consider the average Bollywood narrative of consent, when even Bollywood has learnt to introspect. The farce is, there is a larger pattern to judgments like Mahmood Farooqui v State and that is, a politics of backlash. Courts have flippantly spoken about 바카라�common knowledge바카라� and 바카라�studies바카라� without ever citing hard data and numbers from , only to affirm that women 바카라�misuse바카라� law, when a careful scrutiny of such judgments reveal how easily the courts obfuscate the distinction between 바카라�proved바카라� and 바카라�disproved바카라� categories in law.

The judicial activism in eroding progressive legislations has seen the demise of S. 498A of the Indian Penal Code, assaulted the understanding of 바카라�shared household바카라� in the domestic violence act, and in cases like Farooqui, spun the definition of consent by adding additional protective layers for the accused as a man of letters to 바카라�understand바카라� consent.  The future of radical feminist politics survives on confronting the judicial and popular hazing to articulate a collective response to backlash.  

The Author is a law professor at Jindal Global Law School